The Human Rights Act - protecting the rights of children in kinship care

The Human Rights Act - protecting the rights of children in kinship care

by Alastair Pringle

Published: 10 Dec 2015

On international human rights day, it is fitting to share a story about how the Human Rights Act has improved the lives of thousands of vulnerable children in Scotland to the tune of £10.1m each year.

This significant additional funding, and a change in the policies and practices of Scottish Councils, has been achieved because of effective campaigning by kinship care and anti-poverty groups and the evidence of potential human rights violations brought to the attention of law and policy makers by the Equality and Human Rights Commission.

In 2013, the Poverty Truth Commission contacted the Commission with concerns about the number of kinship children and families living in, or at risk of, poverty. They asked us whether, using our unique legal powers, we could help address problems around the low levels of financial support provided to kinship families.

Thousands of children in Scotland live full-time with their grandparents, aunts, uncles and family friends because their parents are unable to care for them. We decided, in this case, that the focus of any enforcement work was on protecting and promoting the human rights of children in kinship care.

Using Freedom of Information legislation we found that some councils were paying allowances for looked after children in kinship care that were between 60 to 70 per cent less than the allowances for looked after children in foster care. They were also paying the allowance using legislation that prevented kinship families from claiming child-related state benefits. We didn’t find any reason why looked after children in kinship care need less financial support than those in foster care and, so, we decided that the arrangements in these councils may be in violation of the Human Rights Act 1998.

We shared our findings with the Scottish Government and COSLA and explained that we would use our legal powers to raise judicial review proceedings against one or more councils if this wasn’t resolved.

The Scottish Government and COSLA responded positively and immediately began looking at the issues. In September, they reached an agreement so that each local authority will, when combined with child-related state benefits, pay the same allowance for looked after children in kinship as they do for those in foster care.

The outcome of the Commission’s work, which typifies how we can help people across the country, is a significant step forward in addressing some of the issues facing kinship families in Scotland.